Source of article The Advantage Blog - Tsongas Litigation Consulting.
When we have the opportunity to talk with actual juries after a trial, we learn a lot. In a recent post-trial interview, the jurors revealed an influential dynamic that took place early in the deliberation. Their discussion began by going around the table and letting each juror share his or her initial impressions. The juror at the head of the table started first. He gave his overall view of the case. The next juror in line was no more than 30 seconds into her perspective when juror number 10 broke in:
“I’m sorry to interrupt, but when that witness tried to tell us that the plain language in their email didn’t mean what it clearly said, I just lost it. I didn’t believe a thing that witness said for the rest of the day.” Other jurors started nodding their heads. Juror number 2 picked up where juror 10 left off (keep in mind, she had not been talking about the email before she was interrupted): “I found it even more disturbing that the defense attorney got up in their closing argument and proudly stated that the email meant what the witness said it meant. I can’t think of a person I know who would buy that.”
Interestingly enough, this email garnering so much attention from the jurors was not a critical part of the case. It was not used as evidence to support a particular finding on any specific verdict form question. However, it had the effect of a nuclear bomb. In a moment, everything changed. Any chance of the defendant’s best story being the first thing the jury talked about was gone. The witness and the advocate could not be trusted, which put a pall on the defendant’s case. Jurors’ criticisms of the witness’s testimony could be amalgamated into, “If they are going to mislead us about the email, then what else are they misleading us about in the case?”
This example is a small reminder that credibility is a variable in persuasion that cannot be overlooked. Aristotle defined the critical tools of persuasion as “Ethos, Pathos, and Logos.” While there are many slight variations in translation, the practical meaning translates to “Credibility, Emotional Appeal, and Logic.”
Because of the nature of legal education and training, logic rarely gets neglected in cases. After all, you have to be able to construct a logical argument in a complaint and an answer. Emotional appeal is commonly used effectively by many prosecutors and plaintiff’s attorneys. But, many defense attorneys have to work hard to reframe their cases with an affirmative narrative that incorporates the sort of values that utilize pathos as effectively as those with the burden of proof. Credibility as a component of persuasion is often not methodically analyzed and therefore not improved. Here are some quick tips for how to do just that.
Let’s go back to the example for a moment. What did that email say? It was from Jon Moniker, Plant Manager, who said at 11:54pm on June 2nd that, “The equipment at this plant is garbage and I want to throw it away like garbage.” The opposing attorney asks him on the stand, “So, you thought the equipment at your plant was garbage.” His answer, “I wouldn’t put it that way.” Those with ears could note the unusual silence. Those with good emotional intelligence could feel the temperature in the room change. The opposing attorney instructed his “hot seat” operator to pull up exhibit 503 which was already admitted and said to the witness, “Well, you did on June 2nd, didn’t you?”
When I tell this story, often the response from others is, “How does that even happen?” The answer lies in human nature. The witness is embarrassed by the email he wrote (yes, he was drinking) and is worried that it will lose the case for his company so he tries to make it look better than it is. He believes that he is generally a credible person. But, his self awareness is below average. He’s a nice guy but he hasn’t the slightest idea that when he’s late for a meeting and makes up a “white lie” excuse, no one believes him. In fact, many who work with him wish he would just apologize for being late in situations like this and not shame himself in front of the group, but they don’t tell him because he’s the boss and there aren’t that many other jobs in town. If Mr. Moniker had slightly better emotional intelligence he might notice that when he delivers these white lies that people have difficulty making eye contact with him.
But what about the attorney? Why do they follow the witness, “off the cliff?”
Why call attention to an element in the case that’s not helping? When the attorney is put in a tough position (like what to do with a bad email), he feels like he has to defend it because the record is what it is. Unfortunately, trying to get behind the witness to “help them” destroys the attorney’s credibility right along with the witness’s. When Laura Dominic and I wrote, “Don’t be a Corporate Mouthpiece in Your Opening Statement,” last year, we were addressing a specific credibility problem where skeptical jurors turn off after a very short period of time when they perceive the attorney of trying to manipulate them with stories of the company’s charitable efforts instead of presenting their case. The problem for the attorney here is very similar to the witness example. Because they want their client to look good, and they perceive the “commercial” to be harmless at worst, they go on for several minutes, not realizing that when they get to the heart of their opening, it has lost its persuasive force.
So how do we get better?
Improving credibility can be done by conducting a credibility analysis in conjunction with your audience analysis. Breaking it down it looks like this:
Logic – Will my audience be satisfied that I am presenting enough facts, evidence, and reason?
Emotion – Can I incorporate values into my narrative that move my audience emotionally?
Credibility – Is the source of the argument or opinion credible? For example, is the source trustworthy, competent, and likable?
This seems like it shouldn’t be that hard. Why is this difficult?
A common barrier to effectively analyzing credibility is that the analysis isn’t coming from a representative audience. It’s coming from you, your colleagues, or other friendly supporters of your cause. Clearly some people are better than others at putting themselves in others’ “shoes,” but many people are challenged to accurately see something outside the way they and their social circle do – particularly when you present the information in your one-sided, favorable frame.
Find creative ways to get the opinion of people representative of the fact finders in your case as early as possible. Some cases may just merit the opinion of a few cab drivers, bartenders, etc., but many cases merit one form or another of a structured focus group in front of jury eligible participants in the venue if possible.
Another tool is predeposition witness preparation. Often, assessments of witnesses are done by attorneys in casual conversation. The problem here is that many of the skills that make one a good conversationalist makes them low-credibility witnesses. You might think your friendly plant manager will be liked by all, only to be shocked when he won’t stop talking in the deposition. Simulating actual leading questions and putting embarrassing emails in front of witnesses prior to depositions allows for the opportunity to flag issues early in the actual litigation setting. Depending on the situation, the case, and the witness, witness preparation can be more about tactics (e.g., how to handle a loaded question) or more about getting the witness in the right place emotionally (e.g., I have to own this email). Some attorneys are better at the former, some are better at the latter, but it is asking a lot of an attorney to be a trusted advocate as well as the same person who tells the witness that the jury will not find them credible.
Imagine instead getting ahead of our witness and preventing the impending destruction of our plant manager’s credibility. In our preparation sessions it is not uncommon for a situation like this to arise and be prevented. Sure, it takes some time and energy to get the witness to understand the situation they are in and get them as close to comfortable as possible with the idea that denying the obvious is worse for them than coming clean. They have to get to a mental place of acceptance. Over the years I’ve found a helpful question to ask the witness is, “What was going on when this happened (with you, with your company, etc.)?” After letting the witness talk it out and vent a little, they are more comfortable delivering articulately what they truly feel, which is inherently more credible. A relatively recent deposition that I’ll convert to fit our earlier example sounded like this:
Opposing counsel: “So, by June 2nd you had come to the conclusion that the equipment was garbage.”
Witness: “On June 2nd I told my team the equipment was garbage but I was popping off and trying to light a fire under them.”
Opposing counsel: “This email clearly says garbage.”
Witness: “This email was written on a day that was far from my best. I was frustrated at the slow progress of our project and I popped off to the group in a way that seemed helpful at the time but the next day it was clearly just a selfish venting episode on my part.”
Opposing counsel: “So you’re saying this is hyperbole?”
Witness: “I’m saying it was momentary idiocy on my part. I went to every team member the next day in person or by phone and apologized.”
Opposing counsel: “Is this something you have to do often?”
Witness: “Not often, but sometimes I make mistakes.”
This witness’s deposition video was watched by 40 mock jurors and this plant manager had the highest credibility ratings of all witnesses in the entire mock jury exercise. Note, the witness is not “defending himself” as much as he is trying to state as accurately as possible how he views this situation. Furthermore, his take on the situation shows an inherently aware perspective while containing content that his audience can relate to.
The credibility of you and your witnesses stands on the three pillars of effective persuasion. Don’t let low ethos put a cloud over an otherwise strong case. Consider every element of persuasion – logic, emotion, and credibility.